Halacha
הלכה א
מַחְלִיקִין בִּתְאֵנִים וַעֲנָבִים שֶׁל טֶבֶל וְאֵין בָּזֶה מִשּׁוּם הֶפְסֵד. וְכָל שֶׁאָסוּר לְזָרִים לְאָכְלוֹ בִּתְרוּמָה כְּגוֹן הַגַּרְעִינִין וְכַיּוֹצֵא בָּהֶן כָּךְ אָסוּר לְאָכְלוֹ מִן הַטֶּבֶל וּמִן הַמַּעֲשֵׂר שֶׁלֹּא נִטְּלָה תְּרוּמָתוֹ וּמִמַּעֲשֵׂר שֵׁנִי וְהֶקְדֵּשׁ שֶׁלֹּא נִפְדּוּ. וְכָל שֶׁמֻּתָּר לְזָרִים לְאָכְלוֹ בִּתְרוּמָה מִדְּבָרִים אֵלּוּ כָּךְ מֻתָּר בְּטֶבֶל וּבְמַעֲשֵׂר שֶׁלֹּא נִטְּלָה תְּרוּמָתוֹ וּמַעֲשֵׂר שֵׁנִי וְהֶקְדֵּשׁ שֶׁלֹּא נִפְדּוּ:
כסף משנה
1.
One may rub the surface of figs and grapes [of tevel];1Produce from which terumah and tithes were not separated. It was common to rub the surface of grapes and figs to smooth them (Kessef Mishneh). The Radbaz states that oil was applied to their surface. this does not cause a [significant] loss.2Although this activity causes the produce to spoil slightly faster, this is not significant over the long run. See the Rambam's Commentary to the Mishnah (Ma'aserot 1:8). Whatever is forbidden for non-priests to partake of with regard to terumah, e.g., the seeds or the like,3The Rambam is speaking about aspects of produce, e.g., leaves, peels, seeds, some of which are considered waste products (and hence, permitted to be eaten by non-priests) and some of which are considered as food (and forbidden to them). See Hilchot Terumah 11:10-13 where the Rambam gives many different examples of these categories. Any substance that is considered as food with regard to terumah is also considered as food with regard to the other prohibitions mentioned by the Rambam. Conversely, any substance that is not considered as food with regard to terumah is also not considered as food in the other contexts. may not be eaten from tevel, from the tithes from which terumat ma'aser has not been separated, or from the second tithe and consecrated property that were not redeemed. Whatever non-priests may partake of with regard to terumah is also permitted to be eaten from tevel, from the tithes from which terumat ma'aser has not been separated, and from the second tithe and consecrated property that were not redeemed.הלכה ב
אֵין מַדְלִיקִין בְּטֶבֶל טָמֵא אֲפִלּוּ בְּחל וְאֵין צָרִיךְ לוֹמַר בְּשַׁבָּת שֶׁנֶּאֱמַר (במדבר יח ח) "אֶת מִשְׁמֶרֶת תְּרוּמֹתָי" מַה תְּרוּמָה טְהוֹרָה אֵין לְךָ בָּהּ אֶלָּא מִשְּׁעַת הֲרָמָתָהּ אַף תְּרוּמָה טְמֵאָה אֵין לְךָ לֵהָנוֹת בָּהּ אֶלָּא מִשְּׁעַת הֲרָמָתָהּ וְאֵילָךְ:
כסף משנה
2.
We4Even priests who are permitted to use impure terumah (Radbaz). may not kindle impure tevel,5Impure terumah, e.g., oil, may be used as fuel for kindling. The priest might think: "Since I want to use all of this oil as fuel, why should I separate the terumah? Let me kindle it all as tevel." This is not permitted as the Rambam proceeds to explain.Our translation follows the interpretation of the Radbaz. Others interpret the term mechapin as "cover." even during the week. Needless to say, this applies on Sabbath.6I.e., kindling the Sabbath lights with oil that is tevel. This is certainly forbidden, because terumah and the tithes may not be separated on the Sabbath. [This is implied by Numbers 18:8]: "the watch of My terumah."7In the verse, the noun terumah uses a plural form alluding to two types of terumah: pure terumah and impure terumah. See also Hilchot Terumah 2:14. Just as pure terumah may not be used until after it has been separated, so too, we may not benefit from impure terumah until after it was separated.
הלכה ג
אֵין מְחַפִּין בְּטֶבֶל וְאֵין זוֹרְעִין אֶת הַטֶּבֶל וַאֲפִלּוּ פֵּרוֹת שֶׁלֹּא נִגְמְרָה מְלַאכְתָּן אָסוּר לִזְרֹעַ מֵהֶן עַד שֶׁיְּעַשֵּׂר. בַּמֶּה דְּבָרִים אֲמוּרִים בִּתְבוּאָה וְקִטְנִיּוֹת וְכַיּוֹצֵא בָּהֶן. אֲבָל הָעוֹקֵר שְׁתִילִים שֶׁיֵּשׁ בָּהֶן פֵּרוֹת מִמָּקוֹם לְמָקוֹם בְּתוֹךְ שָׂדֵהוּ הֲרֵי זֶה מֻתָּר וְאֵינוֹ כְּזוֹרֵעַ טֶבֶל שֶׁהֲרֵי לֹא אָסַף הַפֵּרוֹת. וְכֵן הָעוֹקֵר לֶפֶת וּצְנוֹנוֹת וּשְׁתָלָם בְּמָקוֹם אַחֵר אִם נִתְכַּוֵּן לְהוֹסִיף בְּגוּפָן מֻתָּר. וְאִם שְׁתָלָן כְּדֵי שֶׁיְּקַשּׁוּ וְיִקַּח הַזֶּרַע שֶׁלָּהֶן אָסוּר מִפְּנֵי שֶׁהוּא כְּזוֹרֵעַ חִטִּים אוֹ שְׂעוֹרִים שֶׁל טֶבֶל:
כסף משנה
3.
We may not cover tevel with earth,8To cover seeds that were strewn over the field with earth (Radbaz). It was forbidden to do this until after terumah and the tithes were separated because this resembles sowing tevel. nor may we sow it. It is forbidden to sow even produce for which the work associated with their preparation has not been completed9The obligation to separate terumah and the tithes does not take effect until the work associated with the preparation of the produce has been completed (see Chapter 3, Halachot 8-13). Since the produce has not reached this stage, one might think that there is no prohibition against sowing it. until it has been tithed.10According to Scriptural Law, there is no prohibition against sowing tevel. The obligation to tithe applies only when one eats. Nevertheless, our Sages (Pe'ah 1:16) imposed this stringency.When does the above apply? With regard to grains, legumes, and the like.11For gathering them together to sow them completes the work associated with their preparation [the Rambam's Commentary to the Mishnah (Ma'aserot 1:8)]. If, however, one uproots saplings that contain fruit and replants them in another place in his field,12The Radbaz states that if he gives the trees to a colleague for the colleague to plant in his field, the fruit must be tithed. it is permitted. It is not considered as sowing tevel, for he did not gather the fruit.13Thus the fruit was never considered as an independent entity from the tree so that the obligation to tithe it could be considered.
Similarly, when one uproots turnips and radishes and replants them elsewhere, if he intends to add to their bulk, it is permitted.14For they were not gathered with the intent of reaping produce and thus the obligation to tithe did not fall upon them. If one plants them so that they will produce stalks so that he can take their seed, it is forbidden [to plant them without tithing],15For the obligation to tithe was incurred when the produce was harvested originally. because it is like sowing wheat or barley that is tevel.
הלכה ד
לִיטְרָא מַעֲשֵׂר טָבוּל שֶׁזְּרָעָהּ וְהִשְׁבִּיחָהּ וַהֲרֵי הִיא עֶשֶׂר לִיטְרִין חַיֶּבֶת בְּמַעֲשֵׂר. וְאוֹתָהּ לִיטְרָא מְעַשֵּׂר עָלֶיהָ מִמָּקוֹם אַחֵר לְפִי חֶשְׁבּוֹן. לִיטְרָא בְּצָלִים שֶׁתִּקְּנָם וּזְרָעָם אֵינוֹ מְעַשֵּׂר לְפִי חֶשְׁבּוֹן הַתּוֹסֶפֶת אֶלָּא מְעַשֵּׂר לְפִי כֻּלּוֹ:
כסף משנה
4.
[The following laws apply when a person] sows a litra of produce16The Ra'avad states that this applies only to crops like onions or the like where a bulb is planted and it increases as it grows. If, however, seeds which do not grow until they decompose are planted, this law does not apply. The Radbaz states that the Rambam would not necessarily accept this limitation. that was separated as tithes, but terumat ma'aser had not been separated from it. If it increased and it is now 10 litra, [the entire new crop] is required to be tithed.17I.e., not only the new crop but also the old crop which was tithed and then sown, as explained in the subsequent notes. A tenth18The percentage to be separated as terumat ma'aser. should be separated for the [original] litra from other produce19Which was reaped in the same year as that produce was reaped, for it is forbidden to separate the terumah [or terumat ma'aser] for produce from one year from produce from a different year (Hilchot Terumot 5:11). according to the appropriate reckoning.20For although it is now considered as part of the new crop, since it still physically exists, there is an obligation to separate terumat ma'aser for it.If one separated [terumah and tithes] from a litra of onions and sowed them, one should not separate the tithes according to the reckoning of the increase, but according to the entire sum of the crop.21Since one sowed the onions themselves and tithes had already been separated from them, there is reason to think that there would be no need to tithe them again. Indeed, it would be undesirable to do so, for it is improper to tithe produce that has already been tithed. Nevertheless, in this instance, there is an obligation to tithe. The rationale is that the new growth of the onions outweighs their initial mass and that initial mass is considered as betal, insignificant and subsumed in the greater whole. This concept is illustrated in other contexts; see Hilchot Terumot 11:22; Hilchot Shemitah 4:21, et al.
הלכה ה
זֵרְעוֹנִים שֶׁהֵבִיאוּ שְׁלִישׁ וּמְרָחָן וְעִשְּׂרָן וְאַחַר כָּךְ זְרָעָן וְהוֹסִיפוּ וְאֵין זַרְעָם כָּלֶה הֲרֵי זֶה סָפֵק אִם חַיָּבִין בְּמַעֲשֵׂר מִדִּבְרֵיהֶם הוֹאִיל וְהוֹסִיפוּ. אוֹ אֵין חַיָּבִין שֶׁהֲרֵי הַזֶּרַע שֶׁעֲדַיִן הוּא קַיָּם וְלֹא אָבַד מְעֻשָּׂר הוּא. וְאֵין אֵלּוּ דּוֹמִים לִבְצָלִים שֶׁהַבְּצָלִים אֵין דַּרְכָּן לְהִזָּרַע:
כסף משנה
5.
There is an unresolved doubt regarding the ruling when stalks of produce whose seed does not decompose that reached a third of their growth,22At which point the obligation to tithe applies. were [gathered,] their stack was straightened, and he tithed them,23I.e., this completes the tasks associated with the preparation of the produce and causes the obligation to tithe to be incurred. he subsequently sowed them, and they increased in size. [One might say that] there is a Rabbinic obligation to tithe them, because they increased in size.24And the produce which existed previously is considered as betal to the new produce, as above. [But one might say] that there is no obligation25To tithe the original produce. Even this opinion agrees that the new produce which grows must be tithed. since the seed which continues to exist and did not decompose was tithed. [The laws governing these species] do not resemble [those that apply to] onions, because it is not common practice to sow onions.26Hence, the laws governing onions cannot provide guidance in this instance (Kessef Mishneh).הלכה ו
הַזּוֹרֵעַ אֶת הַטֶּבֶל בֵּין דָּבָר שֶׁזַּרְעוֹ כָּלֶה בֵּין דָּבָר שֶׁאֵין זַרְעוֹ כָּלֶה אִם אֶפְשָׁר לְלָקְטוֹ קוֹנְסִין אוֹתוֹ וּמְלַקְּטוֹ. וְאִם צָמַח אֵין מְחַיְּבִין אוֹתוֹ לַעֲקֹר וְהַגִּדּוּלִין חֻלִּין. וְאִם הָיָה דָּבָר שֶׁאֵין זַרְעוֹ כָּלֶה אֲפִלּוּ גִּדּוּלֵי גִּדּוּלִין אֲסוּרִין עַד שָׁלֹשׁ גֳּרָנוֹת וְהָרְבִיעִי מֻתָּר. וּמִפְּנֵי מָה הַגִּדּוּלִין אֲסוּרִין מִפְּנֵי תְּרוּמַת מַעֲשֵׂר וּתְרוּמָה גְּדוֹלָה שֶׁבָּהּ. וְכֵן הַדִּין בְּזוֹרֵעַ מַעֲשֵׂר שֶׁלֹּא נִטְּלָה תְּרוּמָתוֹ. אֵין מוֹכְרִין אֶת הַטֶּבֶל אֶלָּא לְצֹרֶךְ וּלְחָבֵר. וְאָסוּר לִשְׁלֹחַ אֶת הַטֶּבֶל וַאֲפִלּוּ חָבֵר לְחָבֵר שֶׁמָּא יִסְמְכוּ זֶה עַל זֶה וְיֵאָכֵל הַטֶּבֶל:
כסף משנה
6.
[The following laws apply when one] sows tevel, whether a crop whose seed decomposes27E.g., wheat or barley. or a crop whose seed does not decompose.28Like onions or garlic. If it is possible for him to gather it [before it takes root in the ground], we penalize him29For violating our Sages' decree not to sow tevel. and [require him to] gather it. [If the seed decomposes], should it grow, we do not require him to uproot [the plants].30For the prohibited entity no longer exists. [The growths] are considered as ordinary produce.31I.e., it is permitted to partake of them and the required separations must be made.If the produce is of a type whose seed does not decompose, even the produce that grows from the growths - indeed, even until the third generation - is forbidden. The fourth generation is permitted. Why are the growths forbidden? Because of the terumat ma'aser and the terumah within them.32Compare to Hilchot Terumah 11:21 and notes. These same laws apply when one sows produce separated as the tithes from which terumat ma'aser was not separated.
It is forbidden to sell tevel except when there is a necessity to do so and [then,] only to a Torah scholar.33We are translating the term chaver according to the Rambam's wording in his Commentary to the Mishnah (Demai 5:8). More specifically, it refers to a person who adheres to the laws of tithing. Torah scholars are mentioned, because we assume that they adhere to those laws (Chapter 9, Halachah 1, Chapter 10, Halachot 1-2). It is forbidden to send [presents] of tevel, even from one Torah scholar to another, perhaps one will rely on the other34I.e., since both are known to tithe their produce, it is possible that both will think that the other one tithed, when in fact neither of them did so. and thus cause tevel to be eaten.
הלכה ז
הַמּוֹכֵר פֵּרוֹת לַחֲבֵרוֹ וְנִזְכַּר שֶׁהֵם טֶבֶל וְרָץ אַחֲרָיו לְתַקְּנוֹ וְלֹא מְצָאוֹ. אִם יָדוּעַ שֶׁאֵין קַיָּמִין וְשֶׁכְּבָר אָבְדוּ אוֹ נֶאֶכְלוּ אֵינוֹ צָרִיךְ לְעַשֵּׂר עֲלֵיהֶם. וְאִם סָפֵק שֶׁהֵם קַיָּמִין אוֹ אֵין קַיָּמִין צָרִיךְ לְהוֹצִיא עֲלֵיהֶן מַעַשְׂרוֹת מִפֵּרוֹת אֲחֵרוֹת:
כסף משנה
7.
[The following rules apply when a person] sells produce35Which both the seller and the purchaser thought had been tithed. to a colleague, but then remembers that it is tevel and although he afterwards runs to pursue him to make the appropriate separations,36I.e., this is the first step such a person should take. he cannot find him. If he knows that the produce no longer exists - it was already lost or consumed - he does not have to separate tithes for it.37Once the produce has ceased to exist, there is no way a person can correct his past lapses. If there is a doubt whether it exists or do not exists, he should separate tithes for it from other produce.38The Ra'avad states that the produce separated must itself be tithed, for it is possible that in fact the original produce had been lost. The Radbaz states that the Rambam would also accept this point.הלכה ח
הַמּוֹכֵר פֵּרוֹת לַחֲבֵרוֹ מוֹכֵר אוֹמֵר עַל מְנָת שֶׁהֵן טֶבֶל מָכַרְתִּי. וְלוֹקֵחַ אוֹמֵר לֹא לָקַחְתִּי מִמְּךָ אֶלָּא מְעֵשָּׂרִין. כּוֹפִין אֶת הַמּוֹכֵר לְתַקֵּן. קְנָס הוּא לוֹ מִפְּנֵי שֶׁמָּכַר טֶבֶל:
כסף משנה
8.
[The following rule applies when there is a dispute when] a person sells produce to a purchaser.] The seller says: "I sold them with the stipulation that they were tevel."39He says this after the sale, so that the purchaser knows that the produce must be tithed. He must bring witnesses who testify that he is telling the truth, i.e., that the produce is tevel. Otherwise, the seller's word would not be accepted. See also Chapter 12, Halachah 18, and notes. The purchaser said: "I purchased tithed produce from you."40And thus the seller is required to reimburse him for the tithed produce. We compel the seller to make the appropriate separations.41I.e., separating the tithes for the produce that was sold from other produce. [This is a] penalty imposed upon him for selling tevel.42I.e., ordinarily, the ruling would favor the seller, based on the principle: "When a person seeks to expropriate property from a coleague, the burden of proof is upon him." In this instance, however, the seller is penalized, because he violated a Rabbinic prohibition by selling tevel (Radbaz).הלכה ט
אֵין פּוֹרְעִין חוֹב מִן הַטֶּבֶל מִפְּנֵי שֶׁהוּא כְּמוֹכְרוֹ:
כסף משנה
9.
One may not pay a debt from tevel, for this resembles a sale.43For one is receiving a monetary advantage for the tevel.הלכה י
מִי שֶׁלָּקְחוּ בֵּית הַמֶּלֶךְ אֶת פֵּרוֹתָיו וְהֵם טְבָלִים. אִם מֵחֲמַת שֶׁהוּא חַיָּב לָהֶן צָרִיךְ לְהוֹצִיא עֲלֵיהֶן מַעַשְׂרוֹת. וְאִם לָקְחוּ בְּאֹנֶס אֵינוֹ צָרִיךְ לְעַשֵּׂר עֲלֵיהֶם:
כסף משנה
10.
[The following laws apply when a person's] crops were seized by the king's authorities while they were tevel. If [they were taken] because he owed this amount,44I.e., the king had levied a tax on all his countrymen equally. Such a tax must be paid, because "the law of the land is your law" (Hilchot Gezeilah 5:12). he must separate the tithes for this produce.45Otherwise, he would be paying a debt with tevel. If they were taken from him by force, he does not have to separate tithes for them.הלכה יא
הַלּוֹקֵחַ טֶבֶל מִשְּׁנֵי מְקוֹמוֹת מְעַשֵּׂר מִזֶּה עַל זֶה. הַמְקַבֵּל שָׂדֶה מִיִּשְׂרָאֵל אוֹ מִן הַנָּכְרִי חוֹלֵק וְנוֹתֵן לְבַעַל הַשָּׂדֶה בְּפָנָיו כְּדֵי שֶׁיֵּדַע שֶׁטֶּבֶל נָטַל. אֲבָל הַחוֹכֵר שָׂדֶה מִיִּשְׂרָאֵל אִם נָתַן לוֹ מִזֶּרַע אוֹתָהּ שָׂדֶה תּוֹרֵם וְאַחַר כָּךְ נוֹתֵן לוֹ מִזּוֹ שֶׁקָּצַץ לִתֵּן לוֹ וּבַעַל הַשָּׂדֶה מְעַשֵּׂר לְעַצְמוֹ. וְאִם נָתַן לוֹ מִזֶּרַע שָׂדֶה אַחֶרֶת אוֹ מִמִּין אַחֵר מוֹצִיא הַמַּעֲשֵׂר וְאַחַר כָּךְ נוֹתֵן לוֹ:
כסף משנה
11.
When a person purchases tevel from two sources,46I.e., both sellers inform the purchaser that they are selling him tevel (Radbaz). he may separate the tithes from one for the other.47We do not suspect that the two batches of produce are from different years and thus the tithes for one should not be separated from the other (ibid.). When a person receives a field from a Jew or from a gentile as part of a sharecropping agreement,48See Halachah 13 for a definition of the Hebrew terms chokar and mekabel used in the Hebrew text of this halachah. he should make the division [of the produce] in the presence of the owner of the field and give him his share then, so that he knows that he received tevel.49The sharecropper does not have to tithe the crop before he gives the owner his share. This is not considered as selling tevel, for the owner's share of the produce never belonged to the sharecropper. Nevertheless, if the division is not made in the presence of the owner, the sharecropper should separate the tithes, lest the owner think the produce he receives has been tithed and transgress by partaking of it without tithing (ibid.). Even if the owner is a gentile, this applies for another Jew may see the Jewish sharecropper bringing produce to the gentile and purchase it from him under the impression that it was tithed (ibid.).[Different rules apply, however, when a person] rents a field from a Jew on the condition that he pay the owner a specific amount of produce. If he pays him with produce from the field he rented, [the renter] must separate terumah.50For it is forbidden to take produce from the grainheap in which it is gathered without separating terumah (ibid.). Afterwards, he gives him the measure he stipulated he would give him and the owner of the field must separate the tithe himself.51The renter does not have to separate the tithes, because - as above - this portion of the crop never belonged to him. From the outset, it was designated for the owner. If, however, [the renter] pays the owner from the produce of another field or with another type of produce, [the renter] must first separate the tithes and then pay [the owner].52For in that instance, he is paying the owner with the untithed produce and that is forbidden.
הלכה יב
הַחוֹכֵר שָׂדֶה מִן הָעַכּוּ''ם מְעַשֵּׂר וְאַחַר כָּךְ נוֹתֵן לוֹ. קְנָס קְנָסוּהוּ בָּזֶה כְּדֵי שֶׁלֹּא יַחְכֹּר מִן הָעַכּוּ''ם, וְנִמְצֵאת הַשָּׂדֶה בּוּרָה לְפָנָיו עַד שֶׁיִּצְטָרֵךְ וְיִמְכְּרֶנָּה לְיִשְׂרָאֵל. וְכֵן הַמְקַבֵּל שְׂדֵה אֲבוֹתָיו מִן הָעַכּוּ''ם קְנָסוּהוּ שֶׁיְּעַשֵּׂר וְאַחַר כָּךְ יִתֵּן חֶלְקוֹ לְעַכּוּ''ם מְעֻשָּׂר כְּדֵי שֶׁלֹּא יִקְפֹּץ וִיקַבְּלָהּ מִמֶּנּוּ מִפְּנֵי שֶׁהִיא שְׂדֵה אֲבוֹתָיו עַד שֶׁתִּשָּׁאֵר לְפָנָיו בּוּרָה כְּדֵי שֶׁיִּמְכְּרֶנָּה לְיִשְׂרָאֵל:
כסף משנה
12.
When a person rents a field from a gentile on the condition that he pay him a specific amount of produce, he must tithe the produce before giving it to him. This is a penalty imposed upon him so that he will not rent the field from the gentile.53The Radbaz notes that - as indicated by the previous halachah - a penalty was not imposed on a person who enters into a sharecropping agreement with a gentile unless it was his ancestral field. The Radbaz explains the difference between the two situations: When a person rents a field for a specific amount of produce, he usually does so as a last resort and receives only a minimal amount. Therefore, if there are restrictions made against him doing so, he may sell the land. When, by contrast, a person seeks a sharecropper, he is reserving the option to sow it himself. Hence, he is less likely to sell it. In this way, the field will lie fallow [before the gentile]54For no one will seek to hire it from him. and, of necessity, he will sell it to a Jew.55This and the measure mentioned in the following clause were part of the safeguards the Sages employed to uphold the Jews' possession of our Holy Land. For in the Roman era, gentiles would frequently seize Jewish property without cause. Rather than have it remain in the gentile's possession, our Sages desired that he be compelled to sell it back to a Jew.In his Commentary to the Mishnah (Demai 6:2), the Rambam states that this ruling applies only in Eretz Yisrael, for it is only there that we are careful about land not being sold to a gentile. The Shulchan Aruch (Yoreh De'ah 331:121), however, quotes this law without making that restriction. It is possible to explain that even in the Diaspora, there is a concept of maintaining the stability of the Jewish community by not giving up Jewish land to gentiles.
Similarly, when a person accepts his ancestral field from a gentile as a sharecropper,56I.e., the gentile seized a field which a Jew had inherited from his ancestors. Because of his connection to the field, the Jew desired to till it and promised to give the gentile a share under a sharecropping agreement. he was penalized and required to tithe the produce before giving the gentile his share of produce after it was tithed. [This measure was instituted] so that a person should not jump at the opportunity to receive it because it was his ancestral field. In this manner, it will remain fallow before the gentile so that he will sell it to a Jew.
הלכה יג
אֵי זֶהוּ חוֹכֵר וְאֵי זֶהוּ מְקַבֵּל. חוֹכֵר שֶׁחוֹכֵר הַקַּרְקַע בְּדָבָר קָצוּב מִן הַזֶּרַע בְּכָךְ וְכָךְ סְאָה בֵּין עָשְׂתָה הַרְבֵּה בֵּין עָשְׂתָה מְעַט. מְקַבֵּל הוּא שֶׁיְּקַבֵּל אוֹתָהּ בְּחֵלֶק מִמַּה שֶּׁתֵּעָשֶׂה חֶצְיוֹ אוֹ שְׁלִישׁוֹ אוֹ מַה שֶּׁיִּתְּנוּ בֵּינֵיהֶן. שׂוֹכֵר הוּא שֶׁשּׂוֹכֵר הַקַּרְקַע בְּמָעוֹת:
כסף משנה
13.
What is meant by a chokar and what is meant by a mekabel?57These terms refer to sharecroppers operating under different types of agreements. A chokar hires the field for a specific amount of produce - these-and-these many se'ah - whether the field produced a lot or a little. A mekabel hires the field for a percentage of its yield, half, a third, or whichever amount they agree on. A sochar is one who rents the land for [a sum of] money.58See Hilchot Sechirut 8:1-2 which also discusses these distinctions.הלכה יד
שְׁנַיִם שֶׁקִּבְּלוּ שָׂדֶה בַּאֲרִיסוּת אוֹ יָרְשׁוּ אוֹ נִשְׁתַּתְּפוּ יָכוֹל הָאֶחָד לוֹמַר לַחֲבֵרוֹ טֹל אַתָּה חִטִּים שֶׁבְּמָקוֹם פְּלוֹנִי וַאֲנִי חִטִּים שֶׁבְּמָקוֹם פְּלוֹנִי אַתָּה יַיִן שֶׁבְּמָקוֹם פְּלוֹנִי וַאֲנִי יַיִן שֶׁבְּמָקוֹם פְּלוֹנִי. אֲבָל לֹא יֹאמַר טֹל אַתָּה חִטִּים וַאֲנִי שְׂעוֹרִים אַתָּה יַיִן וַאֲנִי שֶׁמֶן מִפְּנֵי שֶׁמּוֹכְרִין אֶת הַטֶּבֶל:
כסף משנה
14.
When two people receive a field as sharecroppers together, they inherit the field, or join as partners with regard to it, one may tell the other: "Take the wheat in this-and-this place and I will take the wheat from that-and-that place. You [take] the wine in this-and-this place and I will take the wine from that-and-that place."59I.e., making a division for the sake of convenience [see the standard printed text of the Rambam's Commentary to the Mishnah (Demai 6:8); Rav Kappach's version differs)]. He should not say: "You take the wheat and I will take the barley. You take the wine and I will take the oil," for that constitutes selling tevel.הלכה טו
כֹּהֵן אוֹ לֵוִי שֶׁלָּקְחוּ פֵּרוֹת מִיִּשְׂרָאֵל אַחַר שֶׁנִּגְמְרָה מְלַאכְתָּן מוֹצִיאִין אֶת הַתְּרוּמָה וְהַמַּעַשְׂרוֹת מִידֵיהֶן וְנוֹתְנִין אוֹתָם לְכֹהֲנִים וְלִלְוִיִּם אֲחֵרִים. קְנָס הוּא לָהֶם כְּדֵי שֶׁלֹּא יִקְפְּצוּ לָגֳרָנוֹת וּלְגִתּוֹת וְיִקְנוּ טְבָלִים כְּדֵי לְהַפְקִיעַ מַתְּנוֹת אֲחֵיהֶם הַכֹּהֲנִים. וְאִם קָנוּ קֹדֶם שֶׁתִּגָּמֵר מְלַאכְתָּן אֵין מוֹצִיאִים מִיָּדָם:
כסף משנה
15.
When a priest or a Levite purchased produce from an Israelite after the tasks [associated with their preparation] were completed,60But before terumah and the tithes were separated. Since the priests or Levites are entitled to the tithes and/or the terumah, they wished to purchase the produce and separate them for themselves. See Chapter 1, Halachah 3. we expropriate the terumah and tithes from their possession and give them to other priests and Levites. This is a penalty imposed on them so that they will not hurry to the grainheaps and winepresses and purchase tevel to grab the presents of their priestly brethren.61The Ra'avad accepts the Rambam's ruling, but differs with regard to its motivating rationale. He explains that since the Israelite completed the tasks associated with the preparation of the grain, he has the right to give away the terumah and the tithes and the priest or Levite is not entitled to take that from him. The Radbaz and the Kessef Mishneh note that the rationale given by the Rambam is mentioned in the Jerusalem Talmud (Pe'ah 1:6) and thus question the Ra'avad's position. If, however, they purchase [the produce] before [these] tasks are completed, we do not expropriate [the presents] from their possession.62Since there is a certain amount of difficulty involved in the completion of these tasks, we do not penalize them.הלכה טז
כֹּהֵן אוֹ לֵוִי שֶׁמָּכְרוּ פֵּרוֹת תְּלוּשִׁין לְיִשְׂרָאֵל קֹדֶם שֶׁתִּגָּמֵר מְלַאכְתָּן וְאֵין צָרִיךְ לוֹמַר אִם מָכְרוּ בִּמְחֻבָּר הֲרֵי הַתְּרוּמָה אוֹ הַמַּעֲשֵׂר שֶׁלָּהֶם. וְאִם מָכְרוּ אַחַר גְּמַר מְלָאכָה הֲרֵי הַתְּרוּמָה וְהַמַּעֲשֵׂר שֶׁל לוֹקֵחַ וּמַפְרִישׁ וְנוֹתֵן לְכָל כֹּהֵן אוֹ לֵוִי שֶׁיִּרְצֶה:
כסף משנה
16.
When a priest or Levite sold produce that was detached to an Israelite63But not to a fellow priest or Levite. before the tasks [associated with their preparation] were completed - and certainly, if they sold the produce while it was attached - the terumah or the tithes belong to [the priest or Levite].64The rationale is that we operate under the presumption that when the priest or Levite sold the produce, he included a stipulation that the terumah and/or the tithes were his. Even though this stipulation was not explicitly made, we assume that it was understood (Rav Yosef Korcus).Although they sold tevel - and thus it would be appropriate to penalize them - since they made it known that the produce was tevel, no penalty is imposed. If they sold it after these tasks were completed, the terumah and the tithes belong to the purchaser.65Since the tasks associated with the produce were completed, the obligation to tithe is immediate. Hence, if the priest or Levite desired to retain possession of the terumah and tithes, they would have to make an explicit stipulation. He must separate them and may give them to the priest or Levite of his choice.
הלכה יז
כֹּהֵן וְלֵוִי שֶׁקִּבְּלוּ שָׂדֶה מִיִּשְׂרָאֵל כְּשֵׁם שֶׁחוֹלְקִין בְּחֻלִּין כָּךְ חוֹלְקִין בִּתְרוּמָה וּבְמַעַשְׂרוֹת וְהַיִּשְׂרָאֵל נוֹטֵל חֶלְקוֹ וְנוֹתֵן לְכָל כֹּהֵן אוֹ לֵוִי שֶׁיִּרְצֶה. אֲבָל יִשְׂרָאֵל שֶׁקִּבֵּל שָׂדֶה מִכֹּהֵן אוֹ מִלֵּוִי הַתְּרוּמָה אוֹ הַמַּעֲשֵׂר לְבַעַל הַשָּׂדֶה וּשְׁאָר הַמַּתָּנוֹת חוֹלְקִין:
כסף משנה
17.
When a priest or Levite receive a field from an Israelite under a sharecropping agreement, they should divide the terumah and the tithes, as they divide up the ordinary produce. The Israelite should take his portion and give it to the priest or Levite of his choice. When, however, an Israelite receives a field from a priest or a Levite under a sharecropping agreement, the terumah and/or the tithes belong to the owner of the field.66In this instance as well, since the field belongs to the priest or Levite, it is as if he made a stipulation that the terumah and/or tithes should be given to him. The remainder of the presents67The second tithe or the tithe given to the poor. should be divided.הלכה יח
הַמְקַבֵּל זֵיתִים לְהוֹצִיא מֵהֶן שֶׁמֶן בֵּין יִשְׂרָאֵל מִכֹּהֵן אוֹ לֵוִי בֵּין כֹּהֵן אוֹ לֵוִי מִיִּשְׂרָאֵל כְּשֵׁם שֶׁחוֹלְקִין בְּחֻלִּין כָּךְ חוֹלְקִין בִּתְרוּמָה וּמַעַשְׂרוֹת מִפְּנֵי שֶׁהַשֶּׁמֶן חָשׁוּב הוּא:
כסף משנה
18.
When a person - whether an Israelite from a priest or Levite or a priest or Levite from an Israelite - receive olives68I.e., olives that have already been harvested from the tree (Radbaz). to produce oil, they should divide the terumah and the tithes, as they divide up the ordinary produce. [The rationale is that] oil is an important [commodity].69Hence if the priest or Levite desired that the terumah and/or tithes be left for him, he would have to make an explicit stipulation to that effect. Thus if the olives - or any other produce - have not been harvested, if the land is owned by a priest or Levite, he retains the right to the terumah and/or tithes as above.הלכה יט
כֹּהֵן שֶׁמָּכַר שָׂדֶה לְיִשְׂרָאֵל וְאָמַר לוֹ עַל מְנָת שֶׁהַמַּעֲשֵׂר שֶׁלָּהּ שֶׁלִּי לְעוֹלָם הֲרֵי הֵן שֶׁלּוֹ כֵּיוָן שֶׁאָמַר עַל מְנָת נַעֲשֶׂה כְּמִי שֶׁשִּׁיֵּר מְקוֹם הַמַּעֲשֵׂר. וְאִם מֵת הַכֹּהֵן הֲרֵי בְּנוֹ כִּשְׁאָר הַכֹּהֲנִים. וְאִם אָמַר לוֹ עַל מְנָת שֶׁהַמַּעַשְׂרוֹת לִי וְלִבְנִי מֵת הוּא יִטְלֵם בְּנוֹ. עַל מְנָת שֶׁהַמַּעַשְׂרוֹת שֶׁלִּי כָּל זְמַן שֶׁהִיא לְפָנֶיךָ מְכָרָהּ לְאַחֵר אַף עַל פִּי שֶׁחָזַר וּלְקָחָהּ אֵין לַכֹּהֵן אוֹתָם הַמַּעַשְׂרוֹת:
כסף משנה
19.
When a priest sells a field to an Israelite and tells him: "[I am selling it] on the condition that the tithes from it belong to me forever," they belong to him.70Even if the purchaser later sells that field to another person, he cannot override the stipulation that was part of the original sale. [The rationale is that] saying "on the condition that" is tantamount to setting aside for himself [the portion of the field] where the tithes [grow].71Were his stipulation not to be powerful enough to retain a portion of the land itself, it would not be effective, because it would be tantamount to purchasing an entity that has not come into existence. Such a purchase is not effective (Bava Batra 63a).The commentaries note an apparent contradiction between the Rambam's ruling here and his ruling in Hilchot Bikkurim 9:11. Although there are explicit Talmudic sources for both rulings, their logic appears contradictory. Among the resolutions offered is that here, the Rambam is speaking about landed property, while in Hilchot Bikkurim, he is speaking about an animal and the principles of ownership are different in these two instances.
If the priest [who sold the land] dies, his son is like all other priests.72I.e., he no longer has any special rights to the terumah or tithes. If [the priest] told [the purchaser]: "[I am selling it] on the condition that the tithes from it belong to me and my son," [when] he dies, his son73His grandson, however, does not have a right to them (Aruch HaShulchan). should take [the tithes]. If he sold it "...on the condition throughout the time it is in your possession," should the purchaser sell it to another person - even if he later buys it back, the priest is no longer entitled to those tithes.
הלכה כ
יִשְׂרָאֵל שֶׁקִּבֵּל שָׂדֶה מִכֹּהֵן וְלֵוִי וְאָמַר לוֹ עַל מְנָת שֶׁהַמַּעַשְׂרוֹת שֶׁלִּי אַרְבַּע אוֹ חָמֵשׁ שָׁנִים מֻתָּר. עַל מְנָת שֶׁהֵן שֶׁלִּי לְעוֹלָם אָסוּר שֶׁאֵין כֹּהֵן עוֹשֶׂה כֹּהֵן. וְכֵן בֶּן לֵוִי שֶׁהָיָה עָלָיו חוֹב לְיִשְׂרָאֵל לֹא יִהְיֶה יִשְׂרָאֵל זֶה גּוֹבֶה מֵאֲחֵרִים וּמַפְרִישׁ עַד שֶׁיִּפְרַע כְּנֶגֶד חוֹבוֹ שֶׁאֵין לֵוִי זֶה עוֹשֶׂה בַּעַל חוֹב שֶׁלּוֹ כְּלֵוִי אַחֵר שֶׁיִּגְבֶּה מַעֲשֵׂר מֵאֲחֵרִים:
כסף משנה
20.
When an Israelite received a field under a sharecropping agreement from a priest or Levite and stipulated that [the agreement is being made] "on the condition that the tithes are mine74I.e., the Israelite's. for four or five years," this is permitted.75The Israelite is stipulating that he retains the right to separate the terumah and the tithes for all of the produce and give them to any priest or Levite he desires. Although as stated above, when the owner of the field is a priest, he can retain the rights to the terumah and the tithes. Nevertheless, as part of his contractual arrangement with the renter, he may give him the right to distribute them (Radbaz). "...On the condition that they are mine forever," this is forbidden. [The rationale is that] one priest cannot make another priest.76I.e., a priest cannot give his right to collect terumah to a person who is not a priest. Similarly, a Levite may not make another Levite. Since the renter desires to make the arrangement permanent, it is forbidden, for a person who does not have a right to take the terumah and tithes is taking them.Similarly, if a Levite owed money to an Israelite, the Israelite may not collect produce from others and set aside the tithes for himself until he repays his debt.77I.e., the creditor will continue to deduct the value of the tithes from the debt until the debt is paid. For a Levite cannot make his creditor a Levite so that he can collect the tithes from others.78Even though the creditor is taking them for the Levite, since he does not have an inherent right to them, he may not collect them.
הלכה כא
יִשְׂרָאֵל שֶׁיָּרַשׁ טֶבֶל מְמֹרַח מֵאֲבִי אִמּוֹ כֹּהֵן וְאוֹתוֹ אֲבִי אִמּוֹ יְרָשׁוֹ מֵאֲבִי אִמּוֹ יִשְׂרָאֵל הֲרֵי זֶה מַפְרִישׁ מִמֶּנּוּ מַעַשְׂרוֹתָיו וְהֵן שֶׁלּוֹ. שֶׁהַמַּתָּנוֹת הָרְאוּיוֹת לִיתָרֵם כְּמוֹ שֶׁהוּרְמוּ הֵן אַף עַל פִּי שֶׁלֹּא הוּרְמוּ:
כסף משנה
21.
When an Israelite inherits tevel that was found in a grainheap whose edges had been straightened79I.e., at this stage, the tasks associated with the preparation of the produce were completed and tithes are required to be separated from it. from his maternal grandfather who was a priest who in turn inherited it from his maternal grandfather who was an Israelite, [the Israelite who was the heir] may separate the tithes and keep them as his own. [The rationale is that] presents which are fit to be separated are considered as if they have already been separated although in actual fact they were not separated.80To summarize the situation: The first testator, the Israelite, had completed the tasks involved with the preparation of his produce, but died before he had the opportunity to separate the terumah and the tithes. The first heir and second testator, the priest, also died before he had the opportunity to make these separations. Nevertheless, since had he in fact separated them, he would have been allowed to keep them as his own, we consider it as if he actually did so. Therefore when the final heir, the Israelite, takes possession of the produce, he must separate the terumah and the tithes to fulfill the mitzvah. He may then, however, keep them as his own property. (He may not, however, partake of the terumah, he must sell it to a priest.)הלכה כב
הַנּוֹתֵן שָׂדֵהוּ בְּקַבָּלָה לְעַכּוּ''ם אוֹ לְמִי שֶׁאֵינוֹ נֶאֱמָן עַל הַמַּעַשְׂרוֹת אַף עַל פִּי שֶׁלֹּא בָּאוּ לְעוֹנַת מַעַשְׂרוֹת צָרִיךְ לְעַשֵּׂר עַל יָדָם. נְתָנָהּ לְעַם הָאָרֶץ עַד שֶׁלֹּא בָּאוּ לְעוֹנַת הַמַּעַשְׂרוֹת אֵינוֹ צָרִיךְ לְעַשֵּׂר עַל יָדָם. וּמִשֶּׁבָּאוּ לְעוֹנַת הַמַּעַשְׂרוֹת צָרִיךְ לְעַשֵּׂר עַל יָדָם. כֵּיצַד הוּא עוֹשֶׂה. עוֹמֵד עַל הַגֹּרֶן וְנוֹטֵל וְאֵינוֹ חוֹשֵׁשׁ לְמַה שֶּׁאָכְלוּ שֶׁאֵין אָנוּ אַחְרָאִין לָהֶם:
כסף משנה
22.
When a person gives his field81This halachah is speaking about an instance where the person worded the arrangement with the gentile in such a manner that the gentile does not receive possession of the produce until after it reaches the "phase of tithing." Otherwise, there would be no obligation to separate tithes. See Hilchot Terumah 1:13. to a gentile or to someone upon whom we cannot rely with regard to the tithes82In contrast to the following clause, this phrase does not refer to an ordinary common person, but one who has a reputation for being lax in the observance of this mitzvah (see Ra'avad). For with regard to a common person, we apply certain safeguards lest he not have tithed, but nevertheless, we are not certain that he has not tithed. On the contrary, our presumption is that he did tithe. in a sharecropping arrangement, he must separate the tithes in lieu of them even though [the produce] had not reached the "phase of tithing" [when the arrangement was made].83This is a penalty, imposed so that a person will not give his field to a person who does not observe the mitzvah of tithing.If he entered into such an arrangement with a common person [different rules apply]. If [the arrangement began] before the crops reached the "phase of tithing," he does not have to tithe in lieu of him.84Since the majority of the common people tithe (Shabbat 23a), since he has not incurred the responsibility to tithe at all, he was not penalized. [If it began] after they reached the "phase of tithing," he must tithe in lieu of him.85Since the produce reached the "phase of tithing," and there are some common people who do not tithe, our Sages required that this measure be taken.
What must he do? He should stand over the grainheap86Before a division of produce is made. and take [the produce that must be separated]. He need not be concerned with what they ate,87I.e., if they partook of some of the produce while it was forbidden for them to do so. for we are not responsible for their actions.